The Child and Family Agency & M.H. & I.A.H. (Otherwise A.H.) v The Adoption Authority of Ireland
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Jordan |
| Judgment Date | 27 January 2021 |
| Neutral Citation | [2021] IEHC 53 |
| Date | 27 January 2021 |
| Docket Number | [2020 No. 75 M] [2020 No. 77 M] [2020 No. 78 M] |
In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)
And in the Matter of S.H., a Minor [DOB Redacted]
In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)
And in the Matter of T.S., A Minor Born [DOB Redacted]
In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)
And in the Matter of S.S., a Minor
Born on the [DOB Redacted]
In the Matter of an Application Pursuant to Section 54(2) of the Adoption Act 2010 (As Amended)
And in the Matter of S.S., a Minor
Born on the [DOB Redacted]
[2021] IEHC 53
[2020 No. 75 M]
[2020 No. 76 M]
[2020 No. 77 M]
[2020 No. 78 M]
THE HIGH COURT
FAMILY LAW
JUDGMENT of Mr. Justice Jordan delivered electronically on the 27th day of January, 2021
These proceedings concern four applications brought by the Child and Family Agency (‘the Agency’) pursuant to s. 54(2) of the Adoption Acts 2010 – 2017 (as amended) seeking in each an Order authorizing the Adoption Authority of Ireland (‘the Authority’) to make adoption orders:
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— concerning S.H., born on __ __ 2009, in favour of the Second and Third Named Applicants in proceedings bearing Record Number 2020/75M, M.H. and I.A.H. (otherwise A.H.);
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— concerning T.S., born on _ ___ 2008, in favour of the Second and Third Named Applicants in proceedings bearing Record Number 2020/76M, W.M. and R.M.;
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— concerning S.S., born on the _ ___ 2005, in favour of the Second and Third Named Applicants in proceedings bearing Record Number 2020/77M, N.S. and U.S.;
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— concerning S.S., born on the __ __ 2006, in favour of the Second and Third Named Applicants in proceedings bearing Record Number 2020/78M, N.S. and U.S.
The proceedings relate to four children of Indian origin, the prospective adoptive parents of whom, are all Irish couples habitually resident within the jurisdiction. They were granted guardianship orders in respect of the children in India in 2011. No Indian adoption orders were made in respect of the children and the prospective adoptive parents have each made an application for a domestic adoption order in Ireland.
The child, S.H., is aged eleven and has been in the care of her prospective adoptive parents, M.H. and I.A.H., since the 28th October 2011, having been brought to Ireland by the prospective adoptive parents soon after. She has lived in Ireland with her prospective adoptive parents since in or around the end of 2011 and is habitually resident within the State.
The child, T.S., is aged eleven and has been in the care of her prospective adoptive parents, W.M. and R.M., since the end of 2011, having been brought to Ireland by the prospective adoptive parents soon after. She has lived in Ireland with her prospective adoptive parents since then and is habitually resident within the State.
Siblings, S.S., and S.S., are currently aged fifteen and fourteen respectively. They have been in the care of their prospective adoptive parents, N.S., and U.S., since the 2nd November 2011 and they were brought to Ireland by their prospective adoptive parents in November 2011. They have lived in Ireland with their prospective adoptive parents since that date and are habitually resident within the State.
The factual circumstances arising in each case are broadly similar and raise identical legal issues.
The background of each of the four children is detailed in full in the affidavits of Mr. Mark Kirwan, Manager of the Domestic Adoption Unit of the Authority, sworn in relation to each case on the 8th day of December 2020.
On the 14th January 2020, the Authority made a declaration in respect of each child pursuant to s. 53(1) of the Acts, namely that if an Order is made by this Court pursuant to s. 54(2) in respect of the children in favour of the prospective adoptive parents, then it will, subject to the provisions of s. 53(2) of the said Acts, make the adoption orders sought.
These applications raise issues concerning compliance with the provisions of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, more commonly known as ‘The Hague Convention’, as well as the interpretation of domestic law.
S.H., born in 2009
The first application concerns the child, S.H., believed to be born on the __ __ 2009. There is no original birth certificate available in relation to S.H.
The prospective adoptive parents in this case, M.H. and I.A.H., were granted a declaration by the Authority on the 27th October 2009, stating that they were eligible to adopt by virtue of s. 10 of the Adoption Act, 1991 and were suitable to effect an adoption outside the State by virtue of section 13 of the Adoption Act, 1952. This Declaration was subsequently renewed and was thus valid until the 26th October 2011.
On the 4th December 2009, the Child Welfare Committee (hereafter the ‘CWC’) of Khurda District in the child's country of origin released S.H. for adoption and on the 3rd March 2010, the SANYOG Adoption Coordinating Agency (hereafter ‘ACA’), Orissa gave clearance for S.H. to be placed for intercountry adoption. In the accompanying Certificate of ACA Clearance, it certifies that efforts had been made by the placement agency and by the ACA to place the child for adoption with an Indian family in India, but these efforts were not successful.
The prospective adoptive parents received a referral in respect of S.H. in April of 2010.
On the 21st September 2010, the Central Adoption and Resource Authority (hereafter ‘CARA’), the Central Authority of India, certified that it had no objection to the placement of S.H. with the prospective adoptive parents and it issued a “ No Objection Certificate”, which states that it was issued having regard to Article 17(c) of the Convention.
On the 9th June 2011, the Secretary of Subhadra Mahtab Seva Sadan, an Indian Placement Agency (the ‘ RIPA’), recognized by CARA, wrote to the Authority. This correspondence included the CWC release order for adoption, the Certificate of ACA Clearance and CARA's No Objection Certificate. It also included a letter entitled “Irrevocable Consent for eligibility of adoption for child S.P.” signed by the Secretary of the RIPA, dated the 9th June 2011. This states that the RIPA is the present guardian of the child and that it has approved the Irrevocable Consent to Adoption “which cannot be revoked after it is signed because the child S.P. is eligible for adoption and has adoptability status”. This correspondence also included a birth affidavit in respect of the child, sworn by the Secretary of the RIPA. This attests to the fact that the child is an orphan, living at the RIPA and that she has been made legally free for adoption by the Child Welfare Committee, Khurda on the 4th December 2009. It indicates that the child's birth had not been previously registered, but to the best of his knowledge her date of birth is _9999999__ 2009, and that there is no other document or record recording the birth. Essentially this correspondence amounted to an Article 16 report pursuant to the Convention and a request was made to the Authority for Article 17 approval for the placement of S.H.
Prior to a determination being made by the Authority in relation to the request for Article 17 approval, the Authority sought clarification with the RIPA as to the intention of the prospective adoptive parents regarding the court proceedings to follow. It sought clarity as to whether they intended to complete an adoption in India under the Juvenile Justice Act, 2000 or whether they were seeking guardianship in India, with the intention of effecting an adoption in Ireland. The Authority indicated that it would defer a decision on the issuing of an Article 17 Child Placement Approval Notice pending a response and that in accordance with Article 17, no child should be entrusted to Irish prospective adoptive parents until such time as the Authority has given its approval. The Authority received no response from the RIPA.
The Authority was informed by the prospective adoptive parents' solicitor that they were intending to apply for guardianship of the child in India and that on their return to Ireland, they would apply for an adoption order in this jurisdiction. The prospective adoptive parents were notified by the Authority that whether they obtained an adoption order in India or whether they made a subsequent application for an adoption order in Ireland, Article 17 approval needed to be granted by the Authority prior to any placement of the child with the prospective adoptive parents. Approval by way of Article 17 would be required before the placement could proceed so as to allow the Indian authorities to issue an Article 23 certificate. As a result, the prospective adoptive parents were urged not to proceed with their guardianship application prior to a decision being made by the Authority on the Article 17 approval application.
On the 14th September 2011, the prospective adoptive parents obtained judgment appointing them as guardians in respect of the child by Order of the Family Court, Bhubaneswar. It appears they brought the child to Ireland with them at some time towards the end of October 2011. She has been residing in Ireland with them ever since. They obtained an Irish guardianship order in relation to the child on the 24th October 2012, by Order of the...
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Child and Family Agency v The Adoption Authority of Ireland
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